New Infringement Defense? 'We Don't Roll That Way'

from the well,-there's-that... dept

A bunch of folks have been sending in the story of how some of the major record labels are suing the Ellen DeGeneres show for not paying for clips of music that the show uses during something called the "dance over" portion of the show. Not having ever watched the show, I don't know, but it sounds like a brief clip of music used as an interlude between parts of the show. As plenty of people are pointing out along with their submissions, this seems pretty silly. It's not like hearing these brief musical interludes is likely to harm the market for this music. If anything, it sounds like it would only increase interest in that music from the fans watching the show. Also, it does seem a bit odd that the show would be sued just as DeGeneres is named as a judge for American Idol (though, it's important to note that it's the producers of the show being sued, not DeGeneres herself).

However, I have to admit that the most fascinating part of the lawsuit to me is the piece pointed out by Whitney McNamara discussing how those producers first responded when the labels first asked the show why they hadn't licensed the music:

According to the suit filed Wednesday in U.S. District Court in Nashville, when representatives of the recording companies asked defendants why they hadn't obtained licenses to use the songs, defendants said they didn't "roll that way."

That won't get you very far in court, but is pretty damn funny. The response from the record labels wasn't too bad either:

"As sophisticated consumers of music, Defendants knew full well that, regardless of the way they rolled, under the Copyright Act, and under state law for the pre-1972 recordings, they needed a license to use the sound recordings lawfully."

Even though it makes little sense to me, the labels are almost certainly right here, and will almost certainly win. If, somehow, the show producers could convince a judge that this use of the music was fair use, that would be a huge victory for fair use -- but seems (unfortunately) quite unlikely. Either way, the "we don't roll that way" defense is quite amusing -- especially coming from TV producers who you would think normally fall on the "stronger copyright law" side of the fence. Imagine if a file sharer used that response?

Fair Use

Re: Fair Use

7 seconds... is fair use, total of any song used without licensed royalties. This information was given to me in a broadcast management class when i was in college. So tens of seconds is over the limit when it comes to a fair use excuse.

Welcome To The Tollbooth Lane

Well, this is great. It again paints a picture of how there's a written, and unwritten rules of content and Hollywood in general. Perhaps Ellen was given a promotional license, and now they decide to recend on that agreement: written, oral or otherwise.

This is normal thinking to those in content:If you're using it professionally, or for promotional use, you get a free pass.
If you're using it otherwise, stop for the tollbooth.

However, something happened here, and I can't quite put my finger on it, but someone's mad at her new found success and they decided to pull out, and tell her she's in the wrong lane and use the tollbooths. Crazy.

Solution for future segments

Music played the way the show uses them amounts to "product placement" in the DeGeneris show. It is exactly the kind of thing that other products would pay big bucks to get.

I suspect that the recording societies would require payment even if DeGeneris played music from indie labels and artists that asked the show to please use their music. I would love to see DeGeneris tell the big labels in the future they will only promote music from indie artists. Then as the music is being played, display the url for the little, indie bands whose music is being used. I am guessing that the big labels would wet their pants if those bands started getting popular, and they would have the collection societies back off from charging for this type of promotion.

> the labels are almost certainly right here, and will almost certainly win

Not if they're just short clips. I think it's well established that you ran run 30 seconds without paying a royalty. Though some pay anyways, just to be on the safe side - that's why the "we don't roll that way" is actually a credible and meaningful response. And clever, too.

Fair use?

Statutory fair use in the U.S. includes only certain uses "for purposes such as criticism, comment, news reporting, teaching (including multiple copies for classroom use), scholarship, or research". On her best days, I do not think Ellen is teaching or reporting the news - she is an entertainer.

Unfortunately, the purpose of the use is heavily emphasized in fair use analysis (elevating form or substance,) and is the reason that parody may be fair use but pastiche may not. On the other hand, the Constitutional purpose of copyright is largely ignored in discussions about whether to expand or contract the monopoly it provides.

Uh, just a second here...

...there's a difference between this case and downloading a song for one's private listening pleasure. And it IS a fairness issue. If you are using someone else's creative efforts in a for-profit public performance, then the creator, in all fairness, deserves some share in that profit unless they specifically grant you permission to use it freely. I believe that has always been a part of copyright law. Hence, the ED Show should have gotten permission to use the works from their creators.

Not Fair Use

If you care to watch the show, you'll notice two things: MOST of each song is played, not some random snippet and while it's playing the song metadata (title, artist, studio) are shown on-screen. The length the songs are played should certain disqualify it from "fair use".

Another thing that gums this up, is that a DJ is playing the songs. Don't DJ's pay ASCAP fees as part of being an ASCAP member? I believe so... But I've also heard that those fees don't cover broadcast venues, which is probably going to be the stickler here.

Under what grounds would this have been "fair" use? It wasn't used for criticism, commentary, education, etc. etc.--in fact, if you're going to use the term "fair use", then you have to at least acknowledge that there's also such a thing as "unfair use".

And the idea that the use would "increase the market" for the music is just bogus--things like incidental music for TV shows *ARE* the market for many composers.

probably not fair use

in Aus the laws are pretty tedium infinitum on this - it goes to things like:

is it 10 seconds long,
do the characters appear to hear the music (or is it backing track)
etc

and different license (price) levels apply, but thats in Aus
(I only know how much I get if my music is featured - its not much btw, the actual license fees are collected and shared out by collection societies to all those who have put in all the paperwork etc to claim their works were used).

also its unlikely to be fair use as its not really going to pass the four factor test but IANAL.

as a composer I stand to benefit from tv shows using my works from the exposure, but in theory the license fees helps the creators to survive and work long and hard enough to reap some of the potential benfits from that exposure.

Its a compelling argument that paints a neat picture of artist fairly making a living, but its not very close to reality for most artists as they generally don't have the business admin side of things covered and so are easy prey to record companies.

Its pretty simple for Ellen's producers - they either break the system of copyrights or they pay their fees. Frankly it would be hell interesting if they fought it all the way - but it would come down to the law of the land in the end.